Muslims Taking NYPD to Court Over Surveillance Face Uphill Climb

Lawyers for the Muslim plaintiffs suing the NYPD for its covert surveillance of communities in New Jersey are basing their case on claims that legal experts say may be difficult to prove.

The suit filed Wednesday in federal court in Newark by Muslim Advocates, a national legal advocacy group, asks a judge to find the NYPD’s program unconstitutional, seeks to end those activities and purge files associated with it.

The suit comes after a series of reports by the Associated Press documented surveillance in towns, mosques, businesses and college campuses throughout the northeast, including New Jersey.

The case rests on claims that the NYPD violated the plaintiffs’ constitutional rights, specifically the 14th and first amendments.

Specifically, the complaint alleges violations of the equal protection clause of the 14th Amendment guarantees equal protection regardless of race, religion or national origin.

Plaintiffs also claim violations of the establishment and free exercise clauses of the first amendment, which prevents the government from interfering with an individual’s religious practices.

A major problem with cases about information collection relates to the Supreme Court Case, Laird v. Tatum (1972). In that case, the Army was collecting information about anti-war activists. The court ruled the mere collection of information was a not enough to cause sufficient injury, siding against the activists on that basis.

And, Nelson Tebbe, professor of law at Brooklyn Law School and expert in the 14th amendment and religious freedom law, said this case will be tough to prove.

“The plaintiffs would have to show the purpose, the object of the police here was to discriminate against Muslims, and not simply to target people who were potentially violent or posed potential threats of violence,” Tebbe said.

He added that plantiffs would need to demonstrate the pattern was so severe or present other evidence proves the purpose of the surveillance was to target a particular religious group.

The plaintiffs also must prove that this surveillance resulted in injury, in order to prove these constitutional violations

Syed Farhaj Hassan, 35, is a Specialist in the United States Army, is the one named plaintiff in the suit against the NYPD. The seven others are groups, small businesses and a Jane Doe.

Hassan was born in Chicago and grew up in central New Jersey. He served 14 months in Iraq, working in military intelligence.

As an observant Muslim, he regularly attends mosque. The claim stipulates that Hassan decreased his mosque attendance significantly since learning about the NYPD’s surveillance out of fear that his security clearance would be jeopardized by being closely affiliated with a mosque under suspicion.

“Hassan has been unfairly targeted and stigmatized by the NYPD’s surveillance of his mosques,” states the complaint.

According to attorney Jethro Eisenstein, a lawyer overseeing the Handschu agreement – a case that was settled by a consent decree which governs how police can monitor people engaged in political activity -- Hassan may have the strongest claim.

“What Hassan has done to take himself out of passive collection of information is to describe his military service, and in particular his security clearance and how this surveillance caused him to reduce his religious observance for fear of being caught up in the surveillance,” said Eisenstein.

Eisenstein also points to the “stigmatization of a religious group.”

He said when the government brands a group as a “potential terrorists” that has a terrible teaching effect on the community.

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